highlighted for further consideration was computer crime. Ministers asked that an expert
group be convened to consider the content of a model law on the basis of the work (then
under way) of the Council of Europe on the Draft Convention on Cyber Crime. Topics that
were specifically mentioned for consideration included criminalisation of various forms of
computer abuse, admissibility of computer evidence, and investigation of computer-related
crime.
2.13 An Expert Group duly prepared a draft Model Law which was considered by Senior
Officials in 2001; it took into account a late draft of what was to become the Budapest
Convention. Senior Officials decided that the Expert Group should be reconvened to review
the draft model law in light of recent developments, in particular the changes made to the
text of the Budapest Convention, since the original meeting of the group18. With a number of
very limited exceptions, principally the omission of forgery, fraud and intellectual property
offences from the listed offences, the Model Law is wholly compatible with the Budapest
Convention, as indeed was the intention of the Expert Group. However mutual assistance
provisions are not in the Model Law, as the Expert Group recommended revisions and
additions to the Harare Scheme to deal specifically with cybercrime issues. This led in due
course to the preparation of a revised Harare Scheme which was adopted by Law Ministers
in 2011.
Contents of the Model Law
2.14 The Model Law is in three Parts. Part I contains in section 3 the important definitions
of ‘computer data’, ‘computer system’, ‘service provider’ and ‘traffic data’ (in terms virtually
identical to those in article 1 of the Convention) together with an additional definition of
‘computer data storage medium’ (a term not defined in the Convention but used in a number
of its provisions). Section 4 of the Model Law deals with the jurisdiction of the enacting state
in terms very similar to those of article 22 of the Convention.
2.15 Part II of the Model Law (sections 5-10) is concerned with substantive criminal law
and the creation of offences. The offences relate to illegal access, interfering with data,
interfering with a computer system, the illegal interception of data, illegal devices and child
pornography using a computer system or a computer data storage medium. The provisions
in the Model Law correspond to those in articles 2 to 6 and article 9 of the Convention. As
already noted, the Model Law does not cover computer-related forgery or fraud (the subject
of articles 7 and 8 of the Convention); the criminal law of most if not all Commonwealth
member states would in any event criminalise such conduct.
2.16 Part III of the Model Law (sections 11 to 21) deals with ‘procedural law’. It contains
provisions as to search and seizure warrants, the obligation to assist the police, recording
and access to seized data, the production of data, the disclosure of stored traffic data, the
preservation of data, the interception of electronic communications and the interception of
traffic data, with provisions as to evidence, confidentiality and the limitation of liability
together with the necessary definitions. Although the presentation of the material in the
Model Law differs from that in the Convention, Part III of the Model Law corresponds in
substance to the procedural law provisions in articles 16 to 21 of the Convention.
The Harare Scheme
2.17 In addition to the Model Law, the Commonwealth has the Harare Scheme. The latest
revision of the Scheme was a lengthy process, involving an Expert Working Group meeting
18
For details of the process, see LMM(02)17.
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